LETTER XVIII.
January 25, 1788.
Dear sir,
I am persuaded, a federal head never was formed, that possessed half the
powers which it could carry into full effect, altogether independently of
the state or local governments, as the one, the convention has proposed,
will possess. Should the state legislatures never meet, except merely for
chusing federal senators and appointing electors, once in four and six
years, the federal head may go on for ages to make all laws relative to the
following subjects, and by its own courts, officers, and provisions, carry
them into full effect, and to any extent it may deem for the general
welfare; that is, for raising taxes, borrowing and coining monies, and for
applying them — for forming and governing armies and navies, and for
directing their operations — for regulating commerce with foreign nations,
and among the several states, and with the Indian tribes — for regulating
bankruptcies, weights and measures, post-offices and post-roads, and
captures on land and water — for establishing a uniform rule of
naturalization, and for promoting the progress of science and useful arts —
for defining and punishing piracies and felonies committed on the high seas,
the offences of counterfeiting the securities and current coin of the United
States, and offences against the law of nations, and for regulating all
maritime concerns — for organizing, arming and disciplining the militia (the
respective states training them, and appointing the officers) — for calling
them forth when wanted, and for governing them when in the service of the
union — for the sole and exclusive government of a federal city or town, not
exceeding ten miles square, and of places ceded for forts, magazines,
arsenals, dock-yards, and other needful buildings — for granting letters of
marque and reprisal, and making war — for regulating the times, places, and
manner of holding elections for senators and representatives — for making
and concluding all treaties, and carrying them into execution — for
judicially deciding all questions arising on the constitution, laws, and
treaties of the union, in law and equity, and questions arising on state
laws also, where ambassadors, other public ministers, and consuls, where the
United States, individual states, or a state, where citizens of different
states, and where foreign states, or a foreign subject, are parties or party
— for impeaching and trying federal officers — for deciding on elections,
and for expelling members, &c. All these enumerated powers we must examine
and contemplate in all their extent and various branches, and then reflect,
that the federal head will have full power to make all laws whatever
respecting them; and for carrying into full effect all powers vested in the
union, in any department, or officers of it, by the constitution, in order
to see the full extent of the federal powers, which will be supreme, and
exercised by that head at pleasure, conforming to the few limitations
mentioned in the constitution. Indeed, I conceive, it is impossible to see
them in their full extent at present: we see vast undefined powers lodged in
a weak organization, but cannot, by the enquiries of months and years,
clearly discern them in all their numerous branches. These powers in feeble
hands, must be tempting objects for ambition and a love of power and fame.
But, say the advocates, they are all necessary for forming an energetic
federal government; all necessary in the hands of the union, for the common
defence and general welfare. In these great points they appear to me to go
from the end to the means, and from the means to the end, perpetually
begging the question. I think in the course of these letters, I shall
sufficiently prove, that some of these powers need not be lodged in the
hands of the union — that others ought to be exercised under better checks,
and in part, by the agency of the states-some I have already considered,
some in my mind, are not liable to objections, and the others, I shall
briefly notice in this closing letter.
The power to controul the military forces of the country, as well as the
revenues of it, requires serious attention. Here again, I must premise, that
a federal republic is a compound system, made up of constituent parts, each
essential to the whole: we must then expect the real friends of such a
system will always be very anxious for the security and preservation of each
part, and to this end, that each constitutionally possess its natural
portion of power and influence — and that it will constantly be an object of
concern to them, to see one part armed at all points by the constitution,
and in a manner destructive in the end, even of its own existence, and the
others left constitutionally defenceless.
The military forces of a free country may be considered under three general
descriptions — 1. The militia. 2. the navy — and 3. the regular troops — and
the whole ought ever to be, and understood to be, in strict subordination to
the civil authority; and that regular troops, and select corps, ought not to
be kept up without evident necessity. Stipulations in the constitution to
this effect, are perhaps, too general to be of much service, except merely
to impress on the minds of the people and soldiery, that the military ought
ever to be subject to the civil authority, &c. But particular attention, and
many more definite stipulations, are highly necessary to render the military
safe, and yet useful in a free government; and in a federal republic, where
the people meet in distinct assemblies, many stipulations are necessary to
keep a part from transgressing, which would be unnecessary checks against
the whole met in one legislature, in one entire government. — A militia,
when properly formed, are in fact the people themselves, and render regular
troops in a great measure unnecessary. The powers to form and arm the
militia, to appoint their officers, and to command their services, are very
important; nor ought they in a confederated republic to be lodged, solely,
in any one member of the government. First, the constitution ought to secure
a genuine and guard against a select militia, by providing that the militia
shall always be kept well organized, armed, and disciplined, and include,
according to the past and general usuage of the states, all men capable of
bearing arms; and that all regulations tending to render this general
militia useless and defenceless, by establishing select corps of militia, or
distinct bodies of military men, not having permanent interests and
attachments in the community to be avoided. I am persuaded, I need not
multiply words to convince you of the value and solidity of this principle,
as it respects general liberty, and the duration of a free and mild
government: having this principle well fixed by the constitution, then the
federal head may prescribe a general uniform plan, on which the respective
states shall form and train the militia, appoint their officers and solely
manage them, except when called into the service of the union, and when
called into that service, they may be commanded and governed by the union.
This arrangement combines energy and safety in it; it places the sword in
the hands of the solid interest of the community, and not in the hands of
men destitute of property, of principle, or of attachment to the society and
government, who often form the select corps of peace or ordinary
establishments: by it, the militia are the people, immediately under the
management of the state governments, but on a uniform federal plan, and
called into the service, command, and government of the union, when
necessary for the common defence and general tranquility. But, say
gentlemen, the general militia are for the most part employed at home in
their private concerns, cannot well be called out, or be depended upon; that
we must have a select militia; that is, as I understand it, particular corps
or bodies of young men, and of men who have but little to do at home,
particularly armed and disciplined in some measure, at the public expence,
and always ready to take the field. These corps, not much unlike regular
troops, will ever produce an inattention to the general militia; and the
consequence has ever been, and always must be, that the substantial men,
having families and property, will generally be without arms, without
knowing the use of them, and defenceless; whereas, to preserve liberty, it
is essential that the whole body of the people always possess arms, and be
taught alike, especially when young, how to use them; nor does it follow
from this, that all promiscuously must go into actual service on every
occasion. The mind that aims at a select militia, must be influenced by a
truly anti-republican principle; and when we see many men disposed to
practice upon it, whenever they can prevail, no wonder true republicans are
for carefully guarding against it. As a farther check, it may be proper to
add, that the militia of any state shall not remain in the service of the
union, beyond a given period, without the express consent of the state
legislature.
As to the navy, I do not see that it can have any connection with the local
governments. The want of employment for it, and the want of monies in the
hands of the union, must be its proper limitation. The laws for building or
increasing it, as all the important laws mentioned in a former letter,
touching military and money matters, may be checked by requiring the
attendance of a large proportion of the representatives, and the consent of
a large proportion of those present, to pass them as before mentioned.
By art. 1. sect. 8. "Congress shall have power to provide for organizing,
arming, and disciplining the militia": power to provide for — does this
imply any more than power to prescribe a general uniform plan? And must not
the respective states pass laws (but in conformity to the plan) for forming
and training the militia.
In the present state of mankind, and of conducting war, the government of
every nation must have power to raise and keep up regular troops: the
question is, how shall this power be lodged? In an entire government, as in
Great-Britain, where the people assemble by their representatives in one
legislature, there is no difficulty, it is of course properly lodged in that
legislature: But in a confederated republic, where the organization consists
of a federal head, and local governments, there is no one part in which it
can be solely, and safely lodged. By art. 1. sect. 8. "congress shall have
power to raise and support armies," &c. By art. 1. sect. 10. "no state,
without the consent of congress, shall keep troops, or ships of war, in time
of peace." It seems fit the union should direct the raising of troops, and
the union may do it in two ways; by requisitions on the states, or by direct
taxes — the first is most conformable to the federal plan, and safest; and
it may be improved, by giving the union power, by its own laws and officers,
to raise the states quota that may neglect, and to charge it with the
expence; and by giving a fixed quorum of the state legislatures power to
disapprove the requisition. There would be less danger in this power to
raise troops, could the state governments keep a proper controul over the
purse and over the militia; but after all the precautions we can take,
without evidently fettering the union too much, we must give a large
accumulation of powers to it, in these and other respects. There is one
check, which, I think, may be added with great propriety — that is, no land
forces shall be kept up, but by legislative acts annually passed by
congress, and no appropriation of monies for their support shall be for a
longer term than one year. This is the constitutional practice in Great-
Britain, and the reasons for such checks in the United States appear to be
much stronger. We may also require that these acts be passed by a special
majority, as before mentioned. There is another mode still more guarded, and
which seems to be founded in the true spirit of a federal system: it seems
proper to divide those powers we can with safety, lodge them in no one
member of the government alone; yet substantially to preserve their use, and
to ensure duration to the government, by modifying the exercise of them — it
is to empower congress to raise troops by direct levies, not exceeding a
given number, say 2000 in time of peace, and 12,000 in a time of war, and
for such further troops as may be wanted, to raise them by requisitions
qualified as before mentioned. By the above recited clause no state shall
keep troops, &c. in time of peace — this clearly implies, it may do it in
time of war: this must be on the principle, that the union cannot defend all
parts of the republic, and suggests an idea very repugnant to the general
tendency of the system proposed, which is to disarm the state governments: a
state in a long war may collect forces sufficient to take the field against
the neighbouring states. This clause was copied from the confederation, in
which it was of more importance than in the plan proposed, because under
this the separate states, probably, will have but small revenues.
By article 1. section 8. congress shall have power to establish uniform laws
on the subject of bankruptcies, throughout the United States. It is to be
observed, that the separate states have ever been in possession of the
power, and in the use of it, of making bankrupt laws, militia laws, and laws
in some other cases, respecting which, the new constitution, when adopted,
will give the union power to legislate, &c. — but no words are used by the
constitution to exclude the jurisdiction of the several states, and whether
they will be excluded or not, or whether they and the union will have
concurrent jurisdiction or not, must be determined by inference; and from
the nature of the subject; if the power, for instance, to make uniform laws
on the subject of bankruptcies, is in its nature indivisible, or incapable
of being exercised by two legislatures independently, or by one in aid of
the other, then the states are excluded, and cannot legislate at all on the
subject, even though the union should neglect or find it impracticable to
establish uniform bankrupt laws. How far the union will find it practicable
to do this, time only can fully determine. When we consider the extent of
the country, and the very different ideas of the different parts in it,
respecting credit, and the mode of making men's property liable for paying
their debts, we may, I think, with some degree of certainty, conclude that
the union never will be able to establish such laws; but if practicable, it
does not appear to me, on further reflection, that the union ought to have
the power; it does not appear to me to be a power properly incidental to a
federal head, and, I believe, no one ever possessed it; it is a power that
will immediately and extensively interfere with the internal police of the
separate states, especially with their administering justice among their own
citizens. By giving this power to the union, we greatly extend the
jurisdiction of the federal judiciary, as all questions arising on bankrupt
laws, being laws of the union, even between citizens of the same state, may
be tried in the federal courts; and I think it may be shewn, that by the
help of these laws, actions between citizens of different states, and the
laws of the federal city, aided by no overstrained judicial fictions, almost
all civil causes may be drawn into those courts. We must be sensible how
cautious we ought to be in extending unnecessarily the jurisdiction of those
courts for reasons I need not repeat. This article of power too, will
considerably increase, in the hands of the union, an accumulation of powers,
some of a federal and some of a unfederal nature, too large without it.
The constitution provides, that congress shall have the sole and exclusive
government of what is called the federal city, a place not exceeding ten
miles square, and of all places ceded for forts, dock-yards, &c. I believe
this is a novel kind of provision in a federal republic; it is repugnant to
the spirit of such a government, and must be founded in an apprehension of a
hostile disposition between the federal head and the state governments; and
it is not improbable, that the sudden retreat of congress from Philadelphia,
first gave rise to it. — With this apprehension, we provide, the government
of the union shall have secluded places, cities, and castles of defence,
which no state laws whatever shall invade. When we attentively examine this
provision in all its consequences, it opens to view scenes almost without
bounds. A federal, or rather a national city, ten miles square, containing a
hundred square miles, is about four times as large as London; and for forts,
magazines, arsenals, dock-yards, and other needful buildings, congress may
possess a number of places or towns in each state. It is true, congress
cannot have them unless the state legislatures cede them; but when once
ceded, they never can be recovered, and though the general temper of the
legislatures may be averse to such cessions, yet many opportunities and
advantages may be taken of particular times and circumstances of complying
assemblies, and of particular parties, to obtain them. It is not improbable,
that some considerable towns or places, in some intemperate moments, or
influenced by anti-republican principles, will petition to be ceded for the
purposes mentioned in the provision. There are men, and even towns, in the
best republics, which are often fond of withdrawing from the government of
them, whenever occasion shall present. The case is still stronger; if the
provision in question holds out allurements to attempt to withdraw, the
people of a state must ever be subject to state as well as federal taxes;
but the federal city and places will be subject only to the latter, and to
them by no fixed proportion; nor of the taxes raised in them, can the
separate states demand any account of congress. — These doors opened for
withdrawing from the state governments entirely, may, on other accounts, be
very alluring and pleasing to those anti-republican men who prefer a place
under the wings of courts.
If a federal town be necessary for the residence of congress and the public
officers, it ought to be a small one, and the government of it fixed on
republican and common law principles, carefully enumerated and established
by the constitution. It is true, the states, when they shall cede places,
may stipulate, that the laws and government of congress in them, shall
always be formed on such principles; but it is easy to discern, that the
stipulations of a state, or of the inhabitants of the place ceded, can be of
but little avail against the power and gradual encroachments of the union.
The principles ought to be established by the federal constitution, to which
all the states are parties; but in no event can there be any need of so
large a city and places for forts, &c. totally exempted from the laws and
jurisdictions of the state governments. If I understand the constitution,
the laws of congress, constitutionally made, will have complete and supreme
jurisdiction to all federal purposes, on every inch of ground in the United
States, and exclusive jurisdiction on the high seas, and this by the highest
authority, the consent of the people. Suppose ten acres at West-Point shall
be used as a fort of the union, or a sea port town as a dock-yard, the laws
of the union in those places respecting the navy, forces of the union, and
all federal objects, must prevail, be noticed by all judges and officers,
and executed accordingly: and I can discern no one reason for excluding from
these places, the operation of state laws, as to mere state purposes; for
instance, for the collection of state taxes in them, recovering debts,
deciding questions of property arising within them on state laws, punishing,
by state laws, theft, trespasses, and offences committed in them by mere
citizens against the state laws.
The city, and all the places in which the union shall have this exclusive
jurisdiction, will be immediately under one entire government, that of the
federal head; and be no part of any state, and consequently no part of the
United States. The inhabitants of the federal city and places, will be as
much exempt from the laws and controul of the state governments, as the
people of Canada or Nova Scotia will be. Neither the laws of the states
respecting taxes, the militia, crimes or property, will extend to them; nor
is there a single stipulation in the constitution, that the inhabitants of
this city, and these places, shall be governed by laws founded on principles
of freedom. All questions, civil and criminal, arising on the laws of these
places, which must be the laws of congress, must be decided in the federal
courts; and also, all questions that may, by such judicial fictions as these
courts may consider reasonable, be supposed to arise within this city, or
any of these places, may be brought into these courts; and by a very common
legal fiction, any personal contract may be supposed to have been made in
any place. A contract made in Georgia may be supposed to have been made in
the federal city, in Pennsylvania; the courts will admit the fiction, and
not in these cases, make it a serious question, where it was in fact made.
Every suit in which an inhabitant of a federal district may be a party, of
course may be instituted in the federal courts — also, every suit in which
it may be alledged, and not denied, that a party in it is an inhabitant of
such a district — also, every suit to which a foreign state or subject, the
union, a state, citizens of different states, in fact, or by reasonable
legal fictions, may be a party or parties: And thus, by means of bankrupt
laws, federal districts, &c. almost all judicial business, I apprehend may
be carried into the federal courts, without essentially departing from the
usual course of judicial proceedings. The courts in Great Britain have
acquired their powers, and extended, very greatly, their jurisdictions by
such fictions and suppositions as I have mentioned. The constitution, in
these points, certainly involves in it principles, and almost hidden cases,
which may unfold, and in time exhibit consequences we hardly think of. The
power of naturalization, when viewed in connection with the judicial powers
and cases, is, in my mind, of very doubtful extent. By the constitution
itself, the citizens of each state will be naturalized citizens of every
state, to the general purposes of instituting suits, claiming the benefits
of the laws, &c. And in order to give the federal courts jurisdiction of an
action, between citizens of the same state, in common acceptation, may not a
court allow the plaintiff to say, he is a citizen of one state, and the
defendant a citizen of another, without carrying legal fictions so far, by
any means, as they have been carried by the courts of King's Bench and
Exchequer, in order to bring causes within their cognizance — Further, the
federal city and districts, will be totally distinct from any state, and a
citizen of a state will not of course be a subject of any of them; and to
avail himself of the privileges and immunities of them, must he not be
naturalized by congress in them? and may not congress make any proportion of
the citizens of the states naturalized subjects of the federal city and
districts, and thereby entitle them to sue or defend, in all cases, in the
federal courts? I have my doubts, and many sensible men, I find, have their
doubts, on these points; and we ought to observe, they must be settled in
the courts of law, by their rules, distinctions, and fictions. To avoid many
of these intricacies and difficulties, and to avoid the undue and
unnecessary extension of the federal judicial powers, it appears to me, that
no federal districts ought to be allowed, and no federal city or town,
except perhaps a small town, in which the government shall be republican,
but in which congress shall have no jurisdiction over the inhabitants, but
in common with the other inhabitants of the states. Can the union want, in
such a town, any thing more than a right to the soil on which it may set its
buildings, and extensive jurisdiction over the federal buildings, and
property, its own members, officers, and servants in it? As to all federal
objects, the union will have complete jurisdiction over them, of course any
where, and every where. I still think, that no actions ought to be allowed
to be brought in the federal courts, between citizens of different states,
at least, unless the cause be of very considerable importance: that no
action against a state government, by any citizen or foreigner, ought to be
allowed, and no action, in which a foreign subject is party, at least,
unless it be of very considerable importance, ought to be instituted in the
federal courts — I confess, I can see no reason whatever, for a foreigner,
or for citizens of different states, carrying sixpenny causes into the
federal courts; I think the state courts will be found by experience, to be
bottomed on better principles, and to administer justice better than the
federal courts.
The difficulties and dangers I have supposed, will result from so large a
federal city, and federal districts, from the extension of the federal
judicial powers, &c. are not, I conceive, merely possible, but probable. I
think, pernicious political consequences will follow from them, and from the
federal city especially, for very obvious reasons, a few of which I will
mention.
We must observe, that the citizens of a state will be subject to state as
well as federal taxes, and the inhabitants of the federal city and
districts, only to such taxes as congress may lay — We are not to suppose
all our people are attached to free government, and the principles of the
common law, but that many thousands of them will prefer a city governed, not
on republican principles — This city, and the government of it, must
indubitably take their tone from the characters of the men, who from the
nature of its situation and institution, must collect there. This city will
not be established for productive labour, for mercantile, or mechanic
industry; but for the residence of government, its officers and attendants.
If hereafter it should ever become a place of trade and industry, in the
early periods of its existence, when its laws and government must receive
their fixed tone, it must be a mere court, with its appendages, the
executive, congress, the law courts, gentlemen of fortune and pleasure, with
all the officers, attendants, suitors, expectants and dependants on the
whole, however brilliant and honourable this collection may be, if we expect
it will have any sincere attachments to simple and frugal republicanism, to
that liberty and mild government, which is dear to the laborious part of a
free people, we most assuredly deceive ourselves. This early collection will
draw to it men from all parts of the country, of a like political
description: we see them looking towards the place already.
Such a city, or town, containing a hundred square miles, must soon be the
great, the visible, and dazzling centre, the mistress of fashions, and the
fountain of politics. There may be a free or shackled press in this city,
and the streams which may issue from it may overflow the country, and they
will be poisonous or pure, as the fountain may be corrupt or not. But not to
dwell on a subject that must give pain to the virtuous friends of freedom, I
will only add, can a free and enlightened people create a common head so
extensive, so prone to corruption and slavery, as this city probably will
be, when they have it in their power to form one pure and chaste, frugal and
republican.
Under the confederation congress has no power whereby to govern its own
officers and servant[s]; a federal town, in which congress might have
special jurisdiction, might be expedient; but under the new constitution,
without a federal town, congress will have all necessary powers of course
over its officers and servants; indeed it will have a complete system of
powers to all the federal purposes mentioned in the constitution; so that
the reason for a federal town under the confederation, will by no means
exist under the constitution. — Even if a trial by jury should be admitted
in the federal city, what man, with any state attachments or republican
virtue about him, will submit to be tried by a jury of it.
I might observe more particularly upon several other parts of the
constitution proposed; but it has been uniformly my object in examining a
subject so extensive, and difficult in many parts to be illustrated, to
avoid unimportant things, and not to dwell upon points not very material.
The rule for apportioning requisitions on the states, having some time since
been agreed to by eleven states, I have viewed as settled. The stipulation
that congress, after twenty one years may prohibit the importation of
slaves, is a point gained, if not so favourable as could be wished for. As
monopolies in trade perhaps, can in no case be useful, it might not be amiss
to provide expressly against them. I wish the power to repri[e]ve and pardon
was more cautiously lodged, and under some limitations. I do not see why
congress should be allowed to consent that a person may accept a present,
office, or title of a foreign prince, &c. As to the state governments, as
well as the federal, are essential parts of the system, why should not the
oath taken by the officers be expressly to support the whole? As to debts
due to and from the union, I think the constitution intends, on examining
art. 4. sect. 8. and art. 6. that they shall stand on the same ground under
the constitution as under the confederation. In the article respecting
amendments, it is stipulated that no state shall ever be deprived of its
equal vote in the senate without its consent; and that alterations may be
made by the consent of three-fourths of the states. Stipulations to bind the
majority of the people may serve one purpose, to prevent frequent motions
for change; but these attempts to bind the majority, generally give occasion
for breach of contract. The states all agreed about seven years ago, that
the confederation should remain unaltered, unless every state should agree
to alterations: but we now see it agreed by the convention, and four states,
that the old confederacy shall be destroyed, and a new one, of nine states,
be erected, if nine only shall come in. Had we agreed, that a majority
should alter the confederation, a majority's agreeing would have bound the
rest: but now we must break the old league, unless all the states agree to
alter, or not proceed with adopting the constitution. Whether the adoption
by nine states will not produce a nearly equal and dangerous division of the
people for and against the constitution — whether the circumstances of the
country were such as to justify the hazarding a probability of such a
situation, I shall not undertake to determine. I shall leave it to be
determined hereafter, whether nine states, under a new federal compact, can
claim the benefits of any treaties made with a confederation of thirteen,
under a distinct compact and form of existence — whether the new confederacy
can recover debts due to the old confederacy, or the arrears of taxes due
from the states excluded.
It has been well observed, that our country is extensive, and has no
external enemies to press the parts together: that, therefore, their union
must depend on strong internal ties. I differ with the gentlemen who make
these observations only in this, they hold the ties ought to be strengthened
by a considerable degree of internal consolidation; and my object is to form
them and strengthen them, on pure federal principles. Whatever may be the
fate of many valuable and necessary amendments in the constitution proposed,
the ample discussion and respectable opposition it will receive, will have a
good effect — they will operate to produce a mild and prudent
administration, and to put the wheels of the whole system in motion on
proper principles — they will evince, that true republican principles and
attachments are still alive and formidable in this country. These, in view,
I believe, even men quite disposed to make a bad use of the system, will
long hesitate before they will resolve to do it. A majority from a view of
our situation, and influenced by many considerations, may acquiese in the
adoption of this constitution; but, it is evident, that a very great
majority of the people of the United States think it, in many parts, an
unnecessary and unadviseable departure from true republican and federal
principles.